The Affordable Care Act (ACA) requires employers to notify all workers, regardless of their benefits eligibility status, about the availability of the Health Insurance Marketplaces. All employers, with limited exceptions, are required to distribute the notice to new employees within 14 days of hire. The Department of Labor (DOL) provides customizable model notices to inform workers of their health insurance coverage options.
The DOL published updated model notices as follows:
- Model notice for employers that offer a health plan to some or all employees in English (MS Word) (printer-friendly) and in Spanish (MS Word) (printer-friendly)
- Model notice for employers that do not offer a health plan in English (MS Word) (printer-friendly) and in Spanish (MS Word) (printer-friendly)
The model notices have an expiration date of July 31, 2023. The previous versions expired on June 30, 2023.
As you’re probably aware, Title VII of the Civil Rights Act requires that employers with 15 or more employees make reasonable accommodations for employees’ religious practices and beliefs, so long as it doesn’t cause an undue hardship.
Previously, undue hardship—as it applied to religious accommodations—meant “more than a de minimis cost.” The Supreme Court has now reinterpreted undue hardship in this context to mean “a substantial increased cost in relation to the conduct of [the employer’s] particular business.”
While the term substantial isn’t defined, the Court said employers should consider the requested accommodation and its practical impact relative to the nature, size, and operating costs of their business. Note that even under the old de minimis standard, the EEOC indicated in the federal regulations that undue hardship wasn’t likely to be caused by temporary costs, voluntary or occasional shift swapping, or administrative costs.
The bottom line is that this new interpretation will make it more difficult for employers to deny religious accommodations on the basis of undue hardship. As a result, you should plan to grant most requests unless you’re certain you can show substantially increased costs.
On July 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced that they would be publishing a revised Form I-9, Employment Eligibility Verification, that will be available for use on August 1, 2023
Employers should begin using Form I-9 with a version date of “(Rev. 08/01/23) as of August 1, 2023, to comply with their employment eligibility verification responsibilities. However, employers may continue to use the prior version of Form I-9 (Rev. 10/21/19) through October 31, 2023. After October 31, 2023, the prior version of Form I-9 will be obsolete and no longer valid for use. Beginning November 1, 2023, employers may be subject to penalties if they use the older form.
In addition, the U.S. Department of Homeland Security (DHS) published its much anticipated final rule which includes a remote verification option that allows the agency to create a framework under which employers could implement alternative document examination procedures, such as remote document examination. The new form subsequently has a checkbox to indicate when an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure. The final rule becomes effective August 1, 2023.
From the alert shared by the USCIS, the final rule only allows eligible employers using E-Verify to use an alternative verification method. “Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.”
Resourcing Edge will continue to monitor and provide updates as they become available from DHS, along with the new Form I-9 (Rev. 08/01/23).
On May 5, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) released an announcement stating employers have 30 days to comply with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. This means that employers using temporary flexibilities—first announced in March 2020 and extended through the pandemic—must ensure that all required physical inspections of identity and employment eligibility documents are completed by August 30, 2023.
History of Form I-9 Flexibilities
In its March 2020 announcement, ICE deferred the requirement that employers review employees’ identity and employment authorization documents in their physical presence, instead allowing it to be done remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed. In follow-on guidance, ICE noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
In October 2022, DHS and ICE extended the flexibilities through July 31, 2023. The most recent clarification notifies employers that they have until August 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.
Going Forward: Authorized Representative Option
Employers with hybrid or fully remote workforces are now searching for answers on how to proceed with the physical inspection requirement. Unfortunately, DHS has not released any new guidance for employers who have remote employees who are far from physical office spaces where they can present their Section 2 documents or who have no physical offices at all. Until we await further word from DHS, the only other possible option for employers to satisfy the physical inspection requirement may be to designate an authorized representative to act on their behalf to complete Section 2. 8 CFR § 274a.2(b)(ii) allows anyone acting directly or indirectly in the interest of the employer or their agent to physically examine the identity and employment authorization documents and complete Section 2 with a signature.
An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers should be wary of designating a friend or family member of a new hire as the authorized representative. Employers should take steps, including formulating a policy, to ensure that the person designated understands the obligations of being an authorized representative and takes the responsibility seriously.
The employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf. Employees cannot act as authorized representatives for their own Form I-9. In most states, employers can use a notary public for the physical inspection of documents. In such cases, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9. Notaries should sign in the capacity of an Authorized Representative and not use their title of “Notary Public.” Note that some states, like California and Texas, have restrictions on using notaries for Form I-9 verification in those states. Employers in other jurisdictions should always check their local laws for changes restricting the use of notaries public for Form I-9 verification.
See the preceding alert: Federal: USCIS to Publish Revised Form I-9 for a newly announced alternative verification method for eligible employers.